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| Home > Statutes > Usa-Arizona |
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USA Statutes : arizona
Title : Courts and Civil Proceedings
Chapter : ACTIONS RELATING TO HEALTH CARE
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12-561. Definitions
In this chapter, unless the context otherwise requires:
1. "Licensed health care provider" means both:
(a) A person, corporation or institution licensed or certified by the state to
provide health care, medical services, nursing services or other health-related services
and includes the officers, employees and agents thereof working under the supervision of
such person, corporation or institution in providing such health care, medical services,
nursing services or other health-related services.
(b) A federally licensed, regulated or registered blood bank, blood center or
plasma center collecting, processing or distributing whole human blood, blood components,
plasma, blood fractions or blood derivatives for use by a licensed health care provider
and includes the officers, employees and agents working under the supervision of the
blood bank, blood center or plasma center.
2. "Medical malpractice action" or "cause of action for medical malpractice" means
an action for injury or death against a licensed health care provider based upon such
provider's alleged negligence, misconduct, errors or omissions, or breach of contract in
the rendering of health care, medical services, nursing services or other health-related
services or for the rendering of such health care, medical services, nursing services or
other health-related services, without express or implied consent including an action
based upon the alleged negligence, misconduct, errors or omissions or breach of contract
in collecting, processing or distributing whole human blood, blood components, plasma,
blood fractions or blood derivatives.
12-562 Medical malpractice actions; grounds
A. A medical malpractice action shall not be brought against a licensed health care
provider except upon the grounds set forth in section 12-561.
B. A medical malpractice action brought against a licensed health care provider
shall not be based upon assault and battery.
C. A medical malpractice action based upon breach of contract for professional
services shall not be brought unless such contract is in writing.
D. A medical malpractice action brought against a physician licensed pursuant to
title 32, chapter 13 or 17, a podiatrist licensed pursuant to title 32, chapter 7, a
registered nurse practitioner licensed pursuant to title 32, chapter 15 or a physician
assistant licensed pursuant to title 32, chapter 25 regarding services provided within
that person's scope of practice shall not be based on the neglect, abuse or exploitation
of an incapacitated or vulnerable adult, except as provided in section 46-455. 12-563. Necessary elements of proof
Both of the following shall be necessary elements of proof that injury resulted from
the failure of a health care provider to follow the accepted standard of care:
1. The health care provider failed to exercise that degree of care, skill and
learning expected of a reasonable, prudent health care provider in the profession or
class to which he belongs within the state acting in the same or similar circumstances.
2. Such failure was a proximate cause of the injury.
12-565 Health care actions; collateral source evidence
A. In any medical malpractice action against a licensed health care provider, the
defendant may introduce evidence of any amount or other benefit which is or will be
payable as a benefit to the plaintiff as a result of the injury or death pursuant to the
United States social security act, any state or federal workers' compensation act, any
disability, health, sickness, life, income-disability or accident insurance that provides
health benefits or income-disability coverage and any other contract or agreement of any
group, organization, partnership, or corporation to provide, pay for, or reimburse the
cost of income-disability or medical, hospital, dental or other health care services to
establish that any cost, expense, or loss claimed by the plaintiff as a result of the
injury or death is subject to reimbursement or indemnification from such collateral
sources. Where the defendant elects to introduce such evidence, the plaintiff may
introduce evidence of any amount which the plaintiff has paid or contributed to secure
his right to any such benefits or that recovery from the defendant is subject to a lien
or that a provider of such collateral benefits has a statutory right of recovery against
the plaintiff as reimbursement for such benefits or that the provider of such benefits
has a right of subrogation to the rights of the plaintiff in the medical malpractice
action.
B. Evidence introduced pursuant to this section shall be admissible for the purpose
of considering the damages claimed by the plaintiff and shall be accorded such weight as
the trier of the facts chooses to give it.
C. Unless otherwise expressly permitted to do so by statute, no provider of
collateral benefits, as described in subsection A, shall recover any amount against the
plaintiff as reimbursement for such benefits nor shall such provider be subrogated to the
rights of the plaintiff.
12-566 Health care actions; complaint; specific amount of damages not to be stated
In any medical malpractice action against a licensed health care provider, no dollar
amount or figure shall be included in the complaint, but the complaint may include a
statement reciting that the minimum jurisdictional amount established for filing the
action is satisfied.
12-568 Review of attorneys' fees in health care actions; guidelines
A. The court shall, at the request of any party in any action under this chapter,
determine the reasonableness of each party's attorneys' fees. The court shall take into
consideration the following:
1. The time and labor required, the novelty and difficulty of the questions
involved and the skill requisite to perform the legal services properly.
2. The likelihood, if apparent to the client, that the acceptance of the particular
employment will preclude other employment by the lawyer.
3. The fee customarily charged in the locality for similar legal services.
4. The amount involved and the results obtained.
5. The time limitations imposed by the client or by the circumstances.
6. The nature and length of the professional relationship with the client.
7. The experience, reputation and ability of the lawyer or lawyers performing the
services.
8. Whether the fee is fixed or contingent.
B. In the event that any party requests a determination of the reasonableness of a
party's attorneys' fees pursuant to subsection A, the court shall complete such
determination within twenty days of the request.
12-569 Non-admissibility of certain types of evidence relating to professional liability insurance
During the trial of a medical malpractice action against a licensed health care
provider or during the course of any hearing or review conducted pursuant to section
12-567, evidence that any party or that any witness testifying in such trial, hearing, or
review proceeding has been or is covered by a professional liability insurance policy
issued by a health care insurer established pursuant to title 20, chapter 7, article 2 or
that such party or witness has a financial interest in the operation of such a health
care insurer arising as a result of the ownership of stock, a policy or policies of
insurance, notes, including contributed surplus notes, any other evidence of
indebtedness, or otherwise, shall not be received in evidence for any purpose.
12-570 Malpractice settlement or award reporting; civil penalty; definition
A. If a medical malpractice action or an action brought under section 46-455
against a nursing care institution is settled or a court enters a monetary judgment:
1. The professional liability insurers shall provide the defendant's health
profession regulatory board with all information required to be filed with the national
practitioner data bank pursuant to Public Law 99-660. In the case of an action brought
under section 46-455 against a nursing care institution, the information shall be
provided to the department of health services.
2. The plaintiff's attorney shall provide the defendant's health profession
regulatory board, or, in the case of an action brought against a nursing care
institution, the department of health services, with the notice described in subsection B
of this section, a copy of the complaint and a copy of either the agreed terms of
settlement or the judgment. The attorney shall provide this notice and these documents
within thirty days after a settlement is reached or a judgment is entered.
B. The notice required by subsection A of this section shall contain the following
information:
1. The name and address of each defendant.
2. The name, date of birth and address of each plaintiff.
3. The date and location of the occurrence which created the claim.
4. A statement specifying the nature of the occurrence resulting in the malpractice
action.
5. A copy of all expert witness depositions, a transcript of all expert witness
court testimony or a written evaluation of the case by an expert witness.
C. The notice required by subsection A of this section is not discoverable and not
admissible as evidence.
D. An attorney who does not supply the information required by subsections A and B
of this section within thirty days after the notice of settlement or judgment is due
under subsection A of this section is subject to a civil penalty of five hundred dollars.
E. A confidentiality clause in a settlement agreement does not apply to the
reporting requirements of this section.
F. For the purposes of this section, "health profession regulatory board" has the
same meaning prescribed in section 32-3201. 12-571 Qualified immunity; health professionals; nonprofit clinics; previously owned prescription eyeglasses
A. A health professional, as defined in section 32-3201, who provides medical or
dental treatment within the scope of the health professional's certificate or license at
a nonprofit clinic where neither the professional nor the clinic receives compensation
for any treatment provided at the clinic is not liable in a medical malpractice action,
unless such health professional was grossly negligent.
B. A health professional who, within the professional's scope of
practice, provides previously owned prescription eyeglasses free of charge through a
charitable, nonprofit or fraternal organization is not liable for an injury to the
recipient if the recipient or the recipient's parent or legal guardian has signed a
medical malpractice release form and the injury is not a direct result of the health
professional's intentional misconduct or gross negligence. For purposes of this
subsection, "medical malpractice release form" means a document that the recipient or the
recipient's parent or legal guardian signs before the recipient receives eyeglasses
pursuant to this subsection to acknowledge that the eyeglasses were not made specifically
for the recipient and to accept full responsibility for the recipient's eye safety.
12-581. Definitions
In this article, unless the context otherwise requires:
1. "Bodily injury" means bodily harm, sickness, disease or emotional or mental
distress, including death resulting from any of these conditions at any time, sustained
by a person.
2. "Claimant" means a person suffering bodily injury, a person claiming on behalf
of or as a result of bodily injury to another person, the representative of the estate of
a deceased person or a beneficiary of a wrongful death action.
3. "Costs of health care" means medical, custodial, rehabilitative and related
expenses.
4. "Economic loss" means pecuniary harm for which damages are recoverable.
5. "Future damages" means economic loss and noneconomic loss arising from bodily
injury which accrues after trial of a claim under this article.
6. "Noneconomic loss" means nonpecuniary harm for which damages are recoverable but
does not include punitive or exemplary damages.
7. "Past damages" means economic loss and noneconomic loss arising from bodily
injury which have accrued before a claim is tried under this article, including punitive
or exemplary damages.
8. "Qualified insurer" means an insurer, self-insurer, plan or arrangement approved
by the director of the department of insurance.
12-582. Election of periodic payments
A. This article applies to any trial involving a claim for future damages arising
out of a medical malpractice action. Any party may elect to receive or pay future
damages for economic losses in periodic installments in accordance with this article.
B. The election shall be made pursuant to court rule. Any objection to the
election shall be made pursuant to court rule.
C. An election filed by a party claiming or responding to a claim for future
damages is effective unless an objecting party shows good cause pursuant to section
12-583 why the trial or arbitration of a claim affecting the party should not be
conducted under this article.
D. If an effective election is on file at the commencement of trial, all claims,
including third party claims, counterclaims and claims consolidated for trial shall be
tried under this article unless the court finds that a separate trial or other proceeding
should be held on some or all of the claims that are not the subject of the election.
E. An effective election may be withdrawn only by consent of all parties to the
claim to which the election relates.
12-583. Good cause hearing
A. In a hearing held to determine whether good cause exists not to try a claim
under this article, the court shall consider the circumstances of the parties and all
relevant factors, including, but not limited to:
1. Whether the risk that a lump sum award would be dissipated is insignificant.
2. Whether the amount of future damages is too small or the time over which the
payments would be made is too short or the economic savings are not such as to warrant
payment in periodic installments.
3. Whether a party responding to a claim for future damages is unable to fund a
periodic installment judgment.
B. If the objecting party fails to establish by clear and convincing evidence that
good cause exists not to try a claim under this article, the court shall overrule the
objection to the election.
C. If the court finds that good cause exists not to try a claim under this article,
the court shall set forth in the record the reasons for the finding.
12-584 Special findings; future damages
A. If liability is found in a trial conducted under this article, the trier of fact
shall make separate findings for each claimant specifying the amount of any:
1. Past damages in a lump sum.
2. Future damages for noneconomic loss in a lump sum.
3. Future damages and the periods over which they will accrue, on an annual basis,
for each of the following types:
(a) Costs of health care.
(b) Other economic loss.
B. The findings for future costs of health care of an injured claimant shall
reflect the costs and losses during each year the trier of fact finds the claimant will
sustain those costs and losses. The findings for other future economic loss of an
injured claimant shall be based on the losses that the claimant or beneficiary will
sustain over the period of time the claimant or the deceased would have lived but for the
bodily injury on which the claim is based.
C. The trier of fact may find that future costs of health care will continue for
the duration of the claimant's life, in which case it is not necessary to decide how long
the claimant will live. If the trier of fact so finds, the trier of fact shall determine
the costs of health care the claimant will incur each year while living.
12-585. Evidence of future damages
A. The calculation for all future economic damages shall reflect future changes in
earning power or the purchasing power of the dollar. Future damages shall not be
discounted to present value, except pursuant to section 12-589.
B. Unless the court otherwise directs or the parties otherwise agree, the annual
amounts for future damages shall be prorated and paid at one month intervals during the
year due. Each payment is payable on the first day of the month following its accrual.
12-586 Entering a judgment for future damages
A. If special findings for future damages are made, the court shall enter judgment
pursuant to the following procedures:
1. The court shall apply to the findings of past and future damages any applicable
rules of law in calculating the respective amounts of past and future damages each
claimant is entitled to recover and each party is obligated to pay.
2. The court shall specify payment of attorney fees and litigation expenses
separately from the periodic installments payable to the claimant pursuant to any
agreement entered into between the claimant and his attorney. Under a percentage
attorney fee contract, unless the contract specifies otherwise, the portion of the fee
applicable to the recovery of the periodic installments of future damages is computed by
multiplying the fee percentage times the cost of an annuity which would satisfy the
funding requirements under sections 12-587 and 12-588.
B. A reduction in installments of future damages made pursuant to this section for
payment of attorney's fees shall reduce proportionally all periodic installments for
future damages.
C. The court shall enter judgment in lump sum for past damages and for any future
damages payable in lump sum or otherwise under this section. The court shall also enter
judgment for the payment in periodic installments of the remaining amounts of future
damages, without reduction to present value. The periodic installments shall be set
forth in the judgment in a schedule that shows the annual amount due in each year the
trier of fact has found that losses will accrue. If a finding has been made that costs
of health care will continue for the duration of the claimant's life, the judgment shall
set forth the finding and the amount of those annual losses.
12-587 Funding judgments for periodic installments
A. Each party liable for all or a portion of a judgment containing periodic
installments shall provide funding, separately or jointly, for the unpaid installments in
a form prescribed in section 12-588. The funding shall be provided not later than the
date the judgment is subject to execution or not later than thirty days after the
judgment is entered, whichever is later, unless it is superseded or the power to execute
on the judgment is otherwise suspended.
B. A liability insurer having a contractual obligation or a person adjudged to have
an obligation to pay all or part of a judgment entered for periodic installments is
obligated to provide funding to the extent of the contractual or adjudged obligation. In
determining if a judgment containing periodic installments for future damages exceeds
limits under a liability insurance policy, the installments for future damages in the
judgment shall be discounted to present value under section 12-589 to compute the lump
sum value. The lump sum value or the cost of an annuity which would satisfy the funding
requirement for installments of future damages, whichever is less, must be added to the
total of any lump sum damages contained in the judgment for each claimant. The amount so
computed shall be compared to applicable limits under the policy.
C. A judgment creditor or successor in interest and any party having rights under
subsection E of this section may at any time subsequent to the judgment request the court
to find that funding was not provided or maintained with regard to a judgment obligation
owing to the requesting party. If the court finds that such funding as required by the
judgment was not provided, the court shall order that funding be provided within the time
ordered by the court. If such funding as required by the judgment is not provided within
the time specified by the court, the court shall compute the lump sum equivalent of the
obligation under section 12-589 and enter a judgment for that amount in favor of the
requesting party.
D. If a person who is the only person liable for a portion of a judgment for
periodic installments fails to provide or maintain funding, the right to a lump sum
judgment under subsection C of this section applies only against that person and the
portion of the judgment owed.
E. If more than one person is liable for all or a portion of periodic installments
ordered by the judgment, and the required funding is provided by one or more but fewer
than all of the persons liable, those providing funding may bring an action to satisfy or
protect rights of reimbursement from a person not providing funding. If a person who has
provided funding seeks to enforce rights for funding against a nonfunding person, the
court may order the nonfunding person to indemnify those providing funding for a
proportionate share of the cost of the funding provided or of the cost of an annuity as
provided in section 12-588 which would satisfy the funding requirement.
F. If funding approved by the court has been provided, the judgment debtor on whose
behalf the funding is provided is discharged and any lien against the judgment debtor is
released. A liability insurer providing funding that meets the requirements of section
12-588 on behalf of a judgment debtor, to the extent it is obligated to do so under any
applicable liability insurance contract, is deemed to have satisfied its duty to pay
damages.
G. The court in which a trial is conducted under this article shall retain
jurisdiction to enforce the provisions of this section if a judgment for periodic
installments is entered.
12-588. Form of funding
A. Funding authorized or required for payment of a judgment for periodic
installments shall be approved by the court as sufficient to guarantee financial solvency
and be in one or more of the following forms:
1. An annuity contract issued by one or more qualified insurers.
2. An agreement by one or more qualified insurers to fund the judgment.
3. Any other form of funding which the court approves and to which the claimant
consents.
B. Funding under this section qualifies as a required supersedeas bond.
C. In the event of a qualified assignment under section 130 of the internal revenue
code of 1986, as amended, the qualified assignee and any qualified insurer shall be
jointly and severally liable but the qualified insurer's obligation shall be the primary
obligation.
12-589 Discounting future damages to present value
A. If future damages are ordered to be paid in advance of the period to which they
apply, the court shall compute the present value of the future payments by discounting
each remaining annual payment by a rate of interest equal to the interest rate of the
most recent issue of fifty-two week United States treasury bills sold before the date
damages are discounted.
B. To compute the present value of a lifetime award of future damages pursuant to
section 12-584, subsection C, the duration of the term of payments shall be the life
expectancy of the claimant at the time the computation is made prescribed by the race
neutral life expectancy table for the appropriate sex in the current population survey
collected by the bureau of the census for the bureau of labor statistics of the United
States department of labor.
12-590 Effect of death on periodic installments
A. The liability for payment of periodic installments for costs of health care not
yet due at the death of the person entitled to receive the benefits terminates on the
death of the person. Liability for payment of any other installments or portions of
installments not yet due at the death of the person entitled to receive them terminates,
except as provided in subsections B and C.
B. If, in an action for wrongful death, a judgment for periodic installments
provides payments to more than one person and one or more but fewer than all of them die,
the surviving beneficiaries are entitled to shares proportionate to their shares in the
periodic installments not yet paid to the deceased beneficiary or beneficiaries. The
surviving beneficiaries are not entitled to receive payments beyond the periods specified
for such beneficiaries in the judgment.
C. If, in an action other than for wrongful death, a judgment for periodic
installments is entered and a person entitled to receive benefits for economic losses
other than for costs of health care under the judgment dies, any periodic installments
not yet due at the person's death shall be paid to a beneficiary designated in writing by
the deceased or, in the absence of such a designation, to the estate of the deceased.
12-591 Assignment of periodic installments
An assignment of or an agreement to assign any right to periodic installments for
future damages is not enforceable except for:
1. The payment of alimony, maintenance, spousal support or child support.
2. The costs of products, services or accommodations provided or to be provided by
the assignee for health care.
3. Attorney fees and other litigation expenses incurred in obtaining or enforcing
the judgment.
12-592. Exemption of benefits
Periodic installments for future damages for loss of earnings or loss of support for
beneficiaries of a judgment entered in a wrongful death action are exempt from
garnishment, attachment, execution and any other process or claim to the extent wages or
earnings are exempt under any applicable law. Periodic installments for all other future
damages are exempt under garnishment, attachment, execution and any other process or
claim except to the extent they may be assigned pursuant to section 12-591.
12-593 Duties of the director of the department of insurance and insurance companies
A. The director of the department of insurance shall adopt rules:
1. For determining which insurers and assignees are financially qualified to
provide and maintain the funding required under this article and to be designated as
qualified insurers.
2. To require insurers to provide and maintain funding under section 12-587 if
required by court order.
3. For publishing and revising a list of persons who have been designated by the
director as qualified insurers.
B. The director shall annually review and evaluate the effectiveness of the system
of periodic payments. If pursuant to such review and evaluation, the director determines
that the system of periodic payments is effectively reducing the cost of medical
malpractice tort claims for bodily injury, the director shall order appropriate
actuarially justified rate adjustments based on such findings.
C. In order to qualify under this section, an insurance company shall:
1. Have at least an "A+" (superior) rating and a financial size category of VIII in
the current edition of Best insurance reports as published by A. M. Best company.
2. Have no more than one ratio falling outside the usual range according to the
current ratio published by the national association of insurance commissioners insurance
regulatory information system.
3. Be licensed to do business in a state that has an applicable insurance guaranty
fund of at least one hundred thousand dollars.
4. Meet any other standards that the director deems necessary to assure that
funding will be provided and maintained. A qualified insurer may be a subsidiary of a
parent insurance company if the parent insurance company qualifies as a qualified insurer
and guarantees the obligation of the subsidiary.
12-594 Arbitration and settlement agreements
A. This article also applies to claims for bodily injury arising out of medical
malpractice that are subject to arbitration either by law or if the parties have agreed
to its application by contract.
B. Parties to an action on any claim for bodily injury arising out of medical
malpractice may file with the clerk of the court in which the action is pending, or, if
none is pending, with the clerk of a court of competent jurisdiction over the claim, a
settlement agreement for future damages payable in periodic installments. The settlement
agreement may provide that one or more sections of this article apply to it.
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